Actton Transport Ltd. v. Steeves, 2001 FCT 984

Date: 20010831

Docket: T-671-01

Neutral citation:    2001 FCT 984      

BETWEEN:

       ACTTON TRANSPORT LTD.

Applicant

         - and -

           DAWN STEEVES, CANADA (MINISTER OF LABOUR)

and RUSSELL LYLE McIVOR

Respondents

      REASONS FOR ORDER AND ORDER

O'KEEFE, J.

[1]                 There were three motions argued before me in this proceeding. The motions were:

1.             A motion by the Respondents (Dawn Steeves and Canada (Minister of Labour) for an order staying the judicial review application in its entirety until after such time as the appeal filed in this matter by the Applicant has been decided by the referee appointed pursuant to s. 251.12 of the Canada Labour Code, S.C. [1993] c. 42, s. 37.

2.                    A motion by the Applicant, ACTTON TRANSPORT LTD., for an Order staying the appeal before the Referee, in its entirety, until such time as the application for judicial review filed by the Applicant in this matter has been decided by this Court.

3.                    A motion by the Applicant ACTTON TRANSPORT LTD., for an order extending the time for filing the Applicant's Application Record under Rule 309 in the event that the Respondents' application to stay the Notice of Application for Judicial Review herein is dismissed.

Factual Background

[2]         On March 16, 2001 Dawn Steeves an inspector appointed pursuant to s. 249 of

the Canada Labour Code, R.S.C. 1985, c. L-2 made a Payment Order, against the Applicant pursuant to section 251.1 of the Canada Labour Code.

[3]         The Applicant commenced a statutory appeal of the Payment Order pursuant to

section 251.11 of the Canada Labour Code (supra) on April 2, 2001. The Applicant has paid the amount requested in the Order to the Minister as required by the Canada Labour Code (supra).

[4]         On April 19, 2001 the Applicant filed the within judicial review application in

Federal Court seeking judicial review of the same decision which it had appealed under statutory provisions of the Canada Labour Code (supra).

[5]         The Minister of Labour appointed a Referee under section 251.12 of the

Canada Labour Code (supra) to hear the statutory appeal.

[6]         The Referee advised, in a letter dated June 12, 2001, that the hearing of the

statutory appeal would be adjourned pending determination of the judicial review.

MOTION #1 STAY OF JUDICIAL REVIEW

Issues

1.                    Should the Court hear the judicial review application if there is an adequate alternative remedy in the form of an appeal to the Referee.

2.                    Whether this Honourable Court should stay the within judicial review application on the ground that the statutory appeal process was intended by Parliament to be the exclusive process for the Applicant to challenge a Payment Order issued under section 251.1 of the Canada Labour Code.

1.             Whether this Honourable Court should stay the within judicial review application on the ground that the coexisting judicial review application and statutory appeal process give rise to the danger of conflicting decisions being reached on the same issue.

Law

[7]         The following provisions of the Canada Labour Code (supra) have application:

SECTION 175. REGULATIONS FOR THE PURPOSE OF THIS DIVISION

(1) The Governor in Council may make regulations

(a)                  modifying the provisions of sections 169 and 171 for the purpose of the application of this Division to classes of employees who are employed in or in connection with the operation of any industrial establishment where, in the opinion of the Governor in Council, the application of those sections without modification

(i)                  would be or is unduly prejudicial to the interests of the         employees in those classes, or

(ii)                  would be or is seriously detrimental to the operation of the industrial establishment;

(b)                  exempting any class of employees from the application of any one or more of sections 169, 171 and 174 where the Governor in Council is satisfied that those sections cannot reasonably be applied to that class of employees;

(c)                  providing that section 174 does not apply in circumstances where work practices specified in the regulations are followed that in the opinion of the Governor in Council make the application of that section either unreasonable or inequitable; and

(d)                  providing for the calculation of hours worked by employees of any class who are employed in any industrial establishment or in any class of industrial establishment.

(2) Inquiries. - No regulations may be made pursuant to paragraph (1) (a) or (b) unless the Minister, pursuant to section 248, has caused an inquiry to be made into and concerning the employment of employees liable to be affected thereby and has received a report from the person or persons appointed to hold the inquiry.

251. (1) Where an inspector finds that an employer has failed to pay an employee any wages or other amounts to which the employee is entitled under this Part, the inspector may determine the difference between the wages or other amounts actually paid to the employee under this Part and the wages or other amounts to which the employee is entitled under this Part.

Where amount of underpayment agreed to

(2) Where an inspector determines pursuant to subsection (1) that there is a difference between the wages or other amounts actually paid to an employee and the wages or other amounts to which the employee is entitled and the amount of that difference is agreed to in writing by the employee and his employer, the employer shall, within five days after the date of the agreement, pay the amount

(a) to the employee on the direction of the inspector, or

(b) to the Minister.

Where amount paid to Minister

(3) Where an employer pays the amount under subsection (2) to the Minister, the Minister shall, forthwith on receipt of the amount, pay it over to the employee who, pursuant to subsection (2), is entitled to the amount.

(4) No prosecution for failure to pay an employee the wages or other amounts to which the employee was entitled under this Part shall, without the written consent of the Minister, be instituted against the employer when the employer has made payment of any amount of difference in wages or other amounts in accordance with subsection (2).

R.S., 1985, c. L-2, s. 251; 1993, c. 42, s. 36.

Payment order

251.1 (1) Where an inspector finds that an employer has not paid an employee wages or other amounts to which the employee is entitled under this Part, the inspector may issue a written payment order to the employer, or, subject to section 251.18, to a director of a corporation referred to in that section, ordering the employer or director to pay the amount in question, and the inspector shall send a copy of any such payment order to the employee at the employee's latest known address.

(2) . . . . .

(3) . . . . .

(4) . . . . .

251.11 (1) A person who is affected by a payment order or a notice of unfounded complaint may appeal the inspector's decision to the Minister, in writing, within fifteen days after service of the order, the copy of the order, or the notice.

(2) An employer or a director of a corporation may not appeal from a payment order unless the employer or director pays to the Minister the amount indicated in the payment order, subject to, in the case of a director, the maximum amount of the director's liability under section 251.18. 1993, c. 42, s. 37.

Appointment of referee

251.12 (1) On receipt of an appeal, the Minister shall appoint any person that the Minister considers appropriate as a referee to hear and adjudicate on the appeal, and shall provide that person with

(a) the payment order or the notice of unfounded complaint; and

(bi) the document that the appellant has submitted to the Minister under subsection 251.11 (1).

Powers of referee

           (2) A referee to whom an appeal has been referred by the Minister

(a) may summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the referee deems necessary to deciding the appeal;

(b) may administer oaths and solemn affirmations;

(c) may receive and accept such evidence and information on oath, affidavit or otherwise as the referee sees fit, whether or not admissible in a court of law;

(d) may determine the procedure to be followed, but shall give full opportunity to the parties to the appeal to present evidence and make submissions to the referee, and shall consider the information relating to the appeal; and

(e) may make a party to the appeal any person who, or any group that, in the referee's opinion, has substantially the same interest as one of the parties and could be affected by the decision.

Time frame

(3) The referee shall consider an appeal and render a decision within such time as the Governor in Council may, by regulation, prescribe.

Referee's decision

(4) The referee may make any order that is necessary to give effect to the referee's decision and, without limiting the generality of the foregoing, the referee may, by order,

(a) confirm, rescind or vary, in whole or in part, the payment order or the notice of unfounded complaint;

(b) direct payment to any specified person of any money held in trust by the Receiver General that relates to the appeal; and

(c) award costs in the proceedings.

Copies of decision to be sent

(5) The referee shall send a copy of the decision, and of the reasons therefor, to each party to the appeal and to the Minister.

Order final

(6) The referee's order is final and shall not be questioned or reviewed in any court.

No review by certiorari, etc.

(7) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain a referee in any proceedings of the referee under this section.

And the following provisions of the Motor Vehicle Operators Hours of Work Regulations C.R.C., c. 990:

As amended by: SOR/88-43; SOR/92-594; SOR/95-533

         1. Short Title

1. These Regulations may be cited as the MOTOR VEHICLE OPERATORS

HOURS OF WORK REGULATIONS.

    2. Interpretation

2. In these Regulations,

"Act" means Part III of the CANADA LABOUR CODE;

"Bus operator" means a motor vehicle operator who operates a bus;

"city motor vehicle operator" means a motor vehicle operator who operates exclusively within a ten mile radius of his home terminal and is not a bus operator and includes any motor vehicle operator who is classified as a city motor vehicle operator in a collective agreement entered into between his employer and a trade union acting on his behalf or who is not classified in any such agreement but is considered to be a city motor vehicle operator according to the prevailing industry practice in the geographical area where he is employed;

"employer" . . . .

"highway motor vehicle operator" means a motor vehicle operator who is not a bus operator or a city motor vehicle operator,

Issue No. 1

1.             Should the Court hear the judicial review application if there is an adequate alternative remedy in the form of an appeal to the Referee.

[8]         The Applicant in this motion (Steeves et al.) argued that an adequate alternative remedy existed for the Respondent, ACTTON TRANSPORT LTD., (Actton) in the appeal-process contained in s. 251.12 of the Canada Labour Code (supra). The concept of adequate alternative remedy has been analysed in Canadian Pacific Ltd. v. Matsqui Indian Band [1995] 1 S.C.R. 3 at page 16 by Lamer, C.J.:

Pursuant to those assessment by-laws, notices were sent by each of the appellants to the first respondent, Canadian Pacific Limited ("CP"), in respect of a strip of land running through the reserves over which CP had laid railway tracks. The appellant Matsqui Band also sent a notice of assessment to the second respondent, Unitel Communications Inc. ("Unitel"), which has laid fibre-optic cables on the CP land.

¶ 33           The adequate alternative remedy principle was fully discussed in [1979] 2 S.C.R. 561">Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at p. 586, where Beetz J., for the majority, held at p. 576 that "even in cases involving lack of jurisdiction", the prerogative writs maintain their discretionary nature. Dickson J. (as he then was, dissenting), took a narrower view of discretion in the case of jurisdictional error (pp. 608-9). He nevertheless concluded, at p. 610, that where a jurisdictional error "derives from a misinterpretation of a statute, a statutory right of appeal may well be adequate".

¶ 34           In [1979] 2 S.C.R. 561">Harelkin, a student was required to discontinue his studies. His appeal to a university committee failed. Although there was a further appeal available to the university Senate, the student launched proceedings for certiorari and mandamus before the courts. The issue which is relevant to the case at bar was whether the student was prevented from proceeding to the courts because he had failed to exhaust the appeal opportunities within the university's own regime. Beetz, J., for the majority, stated at p. 588

In order to evaluate whether appellant's right of appeal to the senate committee constituted an adequate alternative remedy and even a better remedy than a recourse to the courts by way of preprogative writs, several factors should have been taken into consideration among which the procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably to be exercised by a body which was not a professional court of appeal and was not bound to act exactly as one nor likely to do so. Other relevant factors include the burden of a previous finding, expeditiousness and costs.

¶ 35           Beetz J. reached the conclusion that the university's own appeal procedure was an adequate alternative remedy and that the lower court should therefore have exercised its discretion not to grant a remedy.

and at p. 17

¶ 37           On the basis of the above, I conclude that a variety of factors should be considered by courts in determining whether they should enter into judicial review, or alternatively should require an applicant to proceed through a statutory appeal procedure. These factors include: the convenience of the alternative remedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities). I do not believe that the category of factors should be closed, as it is for courts in particular circumstances to isolate and balance the factors which are relevant.

_[9]       It is significant to note that the Supreme Court of Canada indicated that "expeditiousness and costs" were relevant facts to be considered and that the category of factors to consider when deciding whether an adequate alternative remedy exists should not be closed.

[10]       In this motion ACTTON by Mr. Van Dekerhoue's affidavit gave the following information:

1.                    The hearing before the referee could last longer than one week.

2.                    ACTTON would be calling at least three witnesses, two of whom are from Vancouver.

3.                    The hearing before the referee is a hearing de nova. The both parties would most likely call evidence before the referee.

I have come to the conclusion that this would involve considerable costs for both parties.

[11]       The objection by ACTTON to the legislation being used by the inspection centres around the following part of the definition of "city motor vehicle operator".

"city motor vehicle operator" means a motor vehicle operator. . . who is not classified in any such agreement but is considered to be a city motor vehicle operator according to the prevailing industry practice in the geographical area where he is employed;

[12]            ACTTON, in its judicial review application, claims that this part of the definition of "city motor vehicle operator" is either void for uncertainty or that the sub-delegation of legislative powers contained in this part of the definition is ultra vires the delegate of Parliament i.e. the Governor in Council (delegatus non potest delegare). If ACTTON is found to be correct in either of its assertions then the definition of "city motor vehicle operator" which is used by the Referee will be different and may impact on who is a "highways motor vehicle operator" as that type of operator is defined as one who is not a "city motor vehicle operator" or "a bus operator". Thus the Referee could conceivably hold a lengthy hearing using the wrong definition and the hearing would eventually be heard all over again. This is not an expeditious manner in which to proceed. I would therefore hold that it would be less costly and more expeditious to allow the judicial review to proceed. Accordingly, I would find that the appeal to the Referee, in this case, is not an adequate alternative remedy and the requested stay is not granted.

[13]       I have not considered the other factors listed by Lamer, C.J. in Canadian Pacific Ltd. v. Matsqui (supra) as my findings make it unnecessary.

Issue No. 2

2.             Whether this Honourable Court should stay the within judicial review application on the ground that the statutory appeal process was intended by Parliament to be the exclusive process for the Applicant to challenge a Payment Order issued under section 251.1 of the Canada Labour Code.

[14]       I am of the view that the statutory appeal process established by s. 251 of the Canada Labour Code (supra) was not intended by Parliament to be the exclusive process by which to challenge a payment order issued pursuant to s. 251.1 of the Canada Labour Code. Parliament has not so stated in the legislation. Lamer, C. J. stated in Canadian Pacific Ltd. v. Matsqui Indian Band (supra) at Page16.

¶ 36           The adequate alternative remedy doctrine was later applied in Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49. There, at p. 93, Dickson C.J. confirmed the discretionary nature of the prerogative writs, even in cases involving lack of jurisdiction. He also stated, at p. 95,

Albeit with the assistance of the wording and scheme of the Act in which the alternative remedy is found, both the fact that ouster needs to be implied and the fact that an evaluation of adequacy is called for suggest that the alternative remedies bar to discretionary judicial relief entails, in reality, a decision by the courts on the appropriateness of their intervention, and less a clear statement of intention by Parliament. By not unambiguously highlighting the exclusivity of the statutory remedy, Parliament leaves it to the judiciary to define its role in relation to that remedy [Emphasis in original]

This statement is applicable to s. 251.12 of the Canada Labour Code (supra).

Issue 3

[15]       I am of the opinion that there should not be conflicting decisions as the Referee would, in his appeal hearing, be applying the Court's finding as to what the definition of "city motor Vehicle operator" comprised.

[16]        The motion for a stay of the judicial review application is denied.

MOTION #2 - SHOULD THE REFEREE'S HEARING BE STAYED

[17]       I do not find that is necessary to rule on this motion as the referee has already indicated in his letter dated June 12, 2001 that "I am adjourning this matter sine die until such time as I am advised by the Minister of Labour that the matter is determined and it is found that the inspector and, accordingly I, have jurisdiction to hear and decide the matter". The matter that the Referee is referring to is the judicial review application attaching his jurisdiction.

MOTION #3 - ACTTON'S MOTION FOR AN EXTENSION OF

TIME TO FILE ITS APPLICATION RECORD

[18]       The Respondent has consented to an extension of time to the Applicant to file its Application Record. The time for ACTTON to file its Application Record is extended to 25 days after the date of this decision.

          ORDER

IT IS HERE BY ORDERED that:

1.            The motion by (Steeves et al.) for an order staying the judicial review application in its entirety until after such time as the appeal filed in this matter by ACTTON has been decided by the referee is dismissed.

2.           The motion by ACTTON to extend the time for filing its application record is granted and the time for the Applicant to file its application record is extended to 25 days after the date of the decision.

        "John A. O'Keefe"      

            JUDGE

Halifax, Nova Scotia

August 31, 2001

      FEDERAL COURT OF CANADA

            TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                        T-671-01

STYLE OF CAUSE:                         Actton Transport Ltd.

            v.

Dawn Steeves, Canada (Minister of Labour)

and Russell Lyle McIvor

PLACE OF HEARING:                         Calgary, Alberta

DATE OF HEARING:                         August 20, 2001

REASONS FOR ORDER AND ORDER OF O'KEEFE, J.

DATED:                         August 31, 2001

APPEARANCES:

James R. Kitsul     for Applicant

Tracy King    for Respondents

SOLICITORS OF RECORD:

James R. Kirsul Law Corporation

19395 Langley By-Pass

Surrey, B.C.

C3S 6K1      for Applicant

Morris A. Rosenberg

Deputy Attorney General of Canada

Department of Justice

211,10199 - 101 Street N.W.

Edmonton, AB

T5J 3Y4       for Respondents